United States District Court, N.D. New York
GV, individually and as parent and natural guardian of CV, an infant under the age of 18, Plaintiff,
BOARD OF EDUCATION OF THE WEST GENESEE CENTRAL SCHOOL DISTRICT et al., Defendants.
THE PLAINTIFF: Getnick, Livingston Law Firm.
THE DEFENDANTS: Board of Education of the West Genesee
Central School District, Onondaga-Cortland-Madison Counties
Board of Cooperative Educational Services.
COUNSEL: PATRICK G. RADEL, ESQ. ELIZABETH A. HOFFMAN, ESQ.
CHRISTOPHER M. MILITELLO, ESQ. FRANK W. MILLER, ESQ.
MEMORANDUM-DECISION AND ORDER
L. SHARPE, SENIOR DISTRICT JUDGE
GV, on behalf of himself and his minor son, CV, commenced
this action against defendants Board of Education of the West
Genesee Central School District (District) and
Onondaga-Cortland-Madison Counties Board of Cooperative
Educational Services (BOCES) pursuant to Section 504 of the
Rehabilitation Act of 1973 (Section 504) and Title II of the
Americans with Disabilities Act (ADA). (Compl., Dkt. No. 1.)
Pending is BOCES' motion for judgment on the pleadings,
(Dkt. No. 29), which seeks to dismiss the complaint and a
cross-claim filed by the District, (Dkt. No. 17 at 10). Also
pending is the District's motion for judgment on the
pleadings, (Dkt. No. 32), which seeks to dismiss the
complaint and a cross-claim filed by BOCES, (Dkt. No. 20 at
2012-13 School Year
the parent and natural guardian of CV, “an infant under
the age of 18” with Down syndrome and attention deficit
hyperactivity disorder. (Compl. ¶ 3; Id.,
Attach. 1 at 4.) During the 2012-13 school year, per the
recommendation of the District's Committee on Special
Education (CSE), CV attended a program, known as the TEAM
class, located at Split Rock Elementary School, one of the
District's elementary schools. (Compl. ¶ 10.) The
TEAM class was “operated” by BOCES and
“jointly staffed and supervised” by the District
and BOCES. (Id. ¶¶ 10-11.)
after the start of the 2012-13 school year, CV
“demonstrated challenging behaviors, ” including
“aggressive behaviors.” (Id. ¶ 12.)
In response, the District and BOCES “repeatedly
subjected CV to violent physical restraints and
seclusion.” (Id. ¶ 13.) District and
BOCES employees “frequently used a therapy mat to pin
CV against a wall” and “left CV alone in the
classroom while holding the door closed from the outside to
prevent his frantic efforts to escape.” (Id.
¶¶ 16-17.) CV was physically restrained seven times
in October 2012; during that month, CV was subjected to
physical restraints involving multiple adults for at least
forty-nine minutes. (Id. ¶¶ 14-15.)
Impartial Hearing Officer's Decision
10, 2013, GV commenced a due process proceeding pursuant to
20 U.S.C. § 1416, Section 504, the ADA, Article 89 of
New York Education Law, and N.Y. Comp. Codes R. & Regs.
tit. 8, § 200.5(j) by serving a due process complaint
notice upon the District. (Id. ¶ 22.) The
District, through its counsel, served a letter response dated
July 22. (Id. ¶ 23.) The matter was heard by
Joan Alexander, an impartial hearing officer (IHO), on
September 10, 11, and 12. (Id. ¶ 24.) GV and
the District were represented by counsel, and District and
BOCES employees testified as witnesses. (Id.
October 29, the IHO issued a decision. (Id. ¶
27; Id., Attach. 1.) The IHO found that the District
did not provide a free appropriate public education (FAPE) to
CV because, among other things, the District “failed to
properly develop, review[, ] and update [CV's behavioral
intervention plan]” and “improperly used
seclusion and restraints” during 2012-13.
(Id., Attach. 1 at 3.) However, regarding GV's
Section 504 and ADA claims, the IHO found “no violation
of Section 504 or the ADA” and explained:
I do not find bad faith or gross misjudgment in the
[District]'s 2012- behavior[al] intervention
“plan”, or in its repeated use of physical
restraints and seclusion. I note that I closely observed the
demeanor of all of the witnesses during a three-day
hearing, and that I've become very familiar with all of
the proof in this matter.
Id., Attach. 1 at 3, 36.
State Review Officer's Decision
the District sought review of the IHO's decision by a
state review officer (SRO). (Compl. ¶ 30.) On February
28, 2014, the SRO issued a decision. (Id., Attach.
2.) Regarding the IHO's finding that the District did not
violate Section 504 or the ADA, the SRO found:
Although [GV] alleges that the [D]istrict violated [S]ection
504 and the ADA, the New York State Education Law does not
appear to provide for state-level administrative review by an
SRO of IHO decisions with regard to [S]ection 504 or ADA
disability discrimination claims . . . . As [GV] provides no
authority for the proposition that SROs have jurisdiction
over [S]ection 504 or ADA claims, and did not respond to the